court overturning an act of a legislative branch. In other words, not deferring to the legislative (and presumably also the executive branch), but following the doctrine of "presumption of constitutionality". Lino made that point in an op-ed Sunday ( http://www.constitution.org/col/np/aas/050710_gra-lev.htm ), and in comments to the Austin Federalist Society meeting June 16 (televised and archived at http://groups.yahoo.com/group/LibertyProspects/links/Liberty_InterNet_Rad_001029099481/
). On the other hand, Randy Barnett, at a recent session of the Heritage Foundation ( http://www.heritage.org ) in Washington, DC, took the opposite position, that it is the presumption of constitutionality that is the problem, implying that courts should be overturning more acts of the other two branches. This seems to define the divide between "conservatives" and "libertarians" on this question.
Lino's argument, like that of Scalia and some other "conservatives", seems to be that it is improper to pass the entire burden of complying with constitutions (both U.S. and state) onto courts, and leave it with legislatures and the political process where it belongs. The position seems to be that it is unhealthy to relieve people of their responsibility to enforce constitutions politically, and it is better to let the people suffer from the effects of unconstitutional legislation to induce them to exercise their responsibility.
While this prudential argument has some merit, my constitutionalist position is that the oath that judges and other officials take, and which is also a duty of civilians even without taking the oath, is to enforce the Constitution in any situation in which one becomes involved, even if that means accepting the burden that has been avoided by others. The problem of the judiciary is not that they deny support to the other branches in making decisions, but that the other branches are derelict.
Contrary to Lino's position, it is not "making law" to refuse to cooperate with the actions of the other branches when those actions are unconstitutional. Lawmaking is directing the actions of officials to apply coercive means and expend public resources in doing so. It is not "lawmaking" to block such positive action, only to order that coercive action be taken and public resources expended in doing so.
It is my general finding that in almost every case in which a court has found an official act to be unconstitutional, the court has been right. Although I do not like the term "judicial activism", if I were to define it consistent with originalism, it would be to sustain official acts when their constitutionality is in doubt. If there is any doubt, the decision should be that the act is unconstitutional. The logic of the Constitution is the presumption of nonauthority, and the burden must always be on officials to prove their authority, and to refrain from any action if their authority for it is challenged, until that authority is proved. That is the essential meaning of the Ninth Amendment.
That is why I call for a voting rule for multi-judge panels that the panel must be unanimous to sustain the constitutionality of any official act.
It is no longer a secret that the U.S. intelligence community is warning of the existence of suitcase nukes already on U.S. territory under the control of terrorists. Specifically, the estimated number is six or seven such devices, and that the terrorists in control of them are al Qaeda. Some of the rumors are more specific, saying the nukes consist of five 100kt devices and two sub-5kt devices. One of the larger devices could take out most of the people in metro areas like New York or Washington, DC.
The usual question raised by these reports is, "If they have them here, why haven't they set them off?" The standard theory from intelligence sources is that the devices are not operational, due to lack of maintenance, and that we are in a race against time until they can get them operational.
I am skeptical of that theory. The devices are presumably among the 40+ Soviet devices that Gen. Lebed reported were missing from the Soviet inventory, presumably made and last maintained in the late 1980s. However, if those devices are copies of U.S. designs, the word I am getting is that while U.S.-made devices of this kind become less reliable after a long period of lack of maintenance, they don't suddenly cease to be operational, and may continue to be likely to go off, perhaps with a lower yield, for several decades after manufacture. For the purposes of terrorists, it is not essential that all of them go off when planned. A 50% rate of success would likely be considered good enough.
I have a different theory, based on my reading of some of the literature and web sites associated with the Islamic imperialist movement, of which al Qaeda seems to be a part. The announced goal of this movement is not just to defend existing Islamic nations from the corrupting influences of the West, or even to destroy Western Civilization as the source of that corruption. Some of their web sites have put up maps of the world in the year 2100 that have the entire planet converted to Islam, presumably under a new caliphate modeled on the theocratic model of the caliphates of the past, somewhat similar to the Taliban.
Let's take those maps seriously, and ask how the leaders of that movement envision accomplishing that goal. Not by sending out swarms of missionaries, the way Christians would do. Not even by sending out hoards of mujahedin to conquer Western nations and give their populations the choice of convert or die, the way Omar and others spread Islam to much of the Middle East, North Africa, and to the other nations where it is now the dominant religion. They know those methods would not work. So what would work?
The answer is terrifyingly obvious. Beginning with the leading Western nation, the United States, smuggle in suitcase nukes until enough are in place, then set them off in random cities at random intervals, while delivering an ultimatum that they will continue to set them off until all the survivors convert.
The initial reaction to such a plan is that it wouldn't work. Americans would never submit to that kind of pressure. They would strike back, wiping out most of the centers of Islamic imperialist activity.
Strike back at whom, and to what effect? Would we nuke Mecca, or Medina, or Qom? That's not where most of al Qaeda is. All that would do is unite the Islamic world against the West, playing into the hands of the imperialists, who might regret the loss of the people of those cities, and some of the relics, but that might actually be welcomed by the imperialists, who see not just the West, but cities generally, as the source of moral corruption. Their Utopian vision is of a world of subsistance farmers and herders, with no cities and no technology more advanced than firearms. They not only don't mind if all of the Western cities are destroyed, but even if all of their own are. Their thinking is similar to that of Pol Pot and the Khmer Rouge, who emptied the cities and killed anyone suspected of being influenced by modern civilization, evidenced by the use of such technology as eyeglasses. The difficulty we have had in just rooting al Qaeda and the Taliban out of Afghanistan demonstrates the obstacles to effectively responding to this kind of threat, especially if we had to extend it to much of the world, or even within the United States to the terrorists that are already here.
I have another theory, that al Qaeda thinks it needs more than six or seven devices, and that it wants to get all it needs in place before setting off the first one. How many would it take, and how many might Osama or his cohorts think it would take? For the answer to the latter question we would need agents on the inside of their inner circle, but we can make some good guesses about how many cities would have to be nuked before the American people would capitulate. Make no mistake. If enough of our cities and other vital resources are nuked, at random sites and at random intervals, even the proud Americans will surrender. Not all of them, of course. There will always be sone holdouts. But I expect that after 20 or 30 nukes go off, either what's left of the government, or a new government that will emerge, will enforce at least outward shows of conversion to Islam on the entire surviving population. Although many of us don't like to admit it, that actually works, and has historically worked. It might take a few generations of cognitive dissonance for anything like genuine devotion to sink in, and while the majority might always remain hypocrites, they will be afraid to express dissent, even in private conversation. Orwell's classic 1984 remains a How-To manual for doing this sort of thing.
So my theory is that al Qaeda is trying to get at least 20 to 30 suitcase nukes into the U.S. and in place before beginning to set them off. That means we still have some time to stop them, either by stopping them from getting control of such devices, or from getting them into the U.S., or of course, by taking out the imperialists themselves. That is certainly the job of the intelligence agencies, primarily, but they do not have a good record of being effective in operating in the parts of the world that they must operate in to get this difficult job done. Building the network of agents worldwide to meet this kind of threat takes a long time, perhaps more time than we have. It is a job for human intelligence ("humint" in spookspeak), more than for signals intelligence ("sigint").
This means that the current half-hearted window-dressing that passes for governmental border security is not enough, nor is there any indication that the current administration takes the threat seriously enough to commit the resources it would take to seal our borders. The voluntary Minuteman Project shows how it can be done: putting a lot more people on the ground and in the air. Increased funding on the order of 10-20% is not nearly enough. Even a 100-200% increase would not be enough. But the policy of "catch-and-release" (to come right back over the border) is also not sufficient. The illegal intruders who are caught should at least be put to work building a fence or wall along the border, before being sent back.
It is also necessary to take firm action against another form the invasion of the United States is taking: the takeover of land and officials by criminal gangs. We get reports that the drug cartels are buying up large ranches and parcels of real estate along both sides of the U.S. border, both with Mexico and with Canada, especially on the U.S. side of the border with Mexico, and also land to create corridors for the movement of the criminals not only across the border, but from the border to transshipment hubs near major metro areas. The formula is "plata or plomo", "silver or lead". Landowners, officials, and other personnel the gangs seek to compromise are first offered purchase or bribes, and if that doesn't work, killed or threatened with violence. There is some indication that the titles to ranches are not being legally transferred, by deeds of record, but the landowners are being left in place, pretending to still own the land, and instructed to not cooperate with law enforcement or voluntary efforts like the Minutemen Project. There is even reason to suspect that drug money is being used to influence "civil rights" organizations to file lawsuits against such efforts as 'discriminatory". Those "civil rights" organizations might not realize they are working for criminal gangs, or perhaps even for terrorists, but they need to wake up and realize what is going on. It is not about harmless foreign jobseekers any more. It is estimated that at least 20% of the intruders are now criminals, prone to commit not just immigration crimes, but crimes of violence. The criminals and terrorists are using the flow of harmless jobseekers as a cover.
The threat of this kind of terrorism also strongly argues for decriminalizing drugs. Prohibition of alcohol didn't work, and prohibition of other psychoactive substances isn't working either. It doesn't prevent acquisition and use. All is does is create a channel of corruption, and worse, now creates a channel of corruption that can be exploited by foreign enemies bent on our destruction. We have enough to do to try to defend our borders against smugglers of suitcase nukes without also having to contend with narcotraffickers that create the underground pathways over which the terrorists can operate.
But this threat also strongly argues strongly for reviving the constitutional militia. When Secretary of State Rice takes the position, as she did in a recent speech, that border security is the "exclusive job" of the government, she is taking a position that is dangerously inadequate. She deserves credit for alerting the public of the danger of the first sign of the threat being "mushroom clouds" over our cities, and of relating how her father once organized a militia to defend their neighbors from violence, but she and others in government need to realize that the efforts that government can make are not enough and can never be enough. Nothing less that the total mobilization of the entire population can hope to significantly reduce a threat of this kind. Yes, civilians are disorganized, untrained, and difficult to control, but so are government operatives. The solution is to organize and train the civilians to function not just as an informer network, which is the opposite of what we need, but as militia, able to meet local challenges locally, even to securing and disarming things like suitcase nukes. There is simply no way government operatives can provide the coverage that is needed. It will take everyone working. There is no really good substitute for requiring everyone to show up for periodic training and organization, if only to break down the barriers of anonymity that now allow criminals and terrorists to operate freely without anyone spotting signs of the threat some might present. Surveillance will require intense socializing and community activity that involves everyone. Many government agencies need to work on this within their own organizations. Could Aldritch Ames have gotten away with his espionage activities if his colleagues had visited him and his wife in their home and noticed he was enjoying a lifestyle his salary could not support? An agency might review the security clearances of its personnel if they don't pay their bills, but does it check up on those who pay their bills too easily?
Finally, I have a theory on why the Bush Administration went into Iraq. Now I am not excusing it as a matter of law. Without a declaration or war, or letters of marque and reprisal, issued to the President and forces under his command, it is illegal, a violation of several clauses in 18 USC Chapter 45, and grounds for impeachment. On the other hand, that doesn't mean that the Iraqi policy of the Bush Administration is not a good idea, apart from its illegality, which could have been avoided by getting Congress to issue a declaration of war or letters of marque and reprisal. I am also aware of many reasons for that Iraqi policy, among which securing the flow of Iraqi oil into world oil markets to keep down the world price of oil is not a bad one. But I find another good reason, one that involves more subtle strategic thinking than this Administration is perhaps able to manage, but which would do them some credit if it was part of their thinking. The theory is this: to give al Qaeda something it wants, a recruiting ground sufficiently rich to induce them to concentrate their efforts on an insurgency there, and to delay setting off nukes on U.S. soil, giving us more time to try to find and secure those devices. The reason I suspect it is not part of the Administration's thinking is because they don't seem to be doing all that it would take to keep more nukes out of the U.S. Perhaps they are doing more, and being more effective, than is apparent from sources of information available to me. I hope so, but I doubt it. They need to be doing so much more for border security and militia activation than they are, it seems unlikely they are pursuing a diversionary strategy that is not combined with such other elements of a complete strategy.
For the decision see http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html , and particularly the dissent of Justice Thomas. While he gets the essentials of original understanding of the Commerce Clause nearly correct, he commits the first error in considering the original meaning of "commerce" to include both "goods" and "services". My research, including recent research of documents archived from the Founding Era, makes it clear that originally it included only tangible commodities, not services, and that the defining attributes were (1) transfer of title; (2) transfer of location (from a foreign nation or state to a different state in this nation); and (3) transfer of possession; and all this (4) for a valuable consideration.
His second error is to accept the doctrine that the power to "regulate" "implies" (authorizes) the power to "prohibit" or to impose criminal penalties (deprivation of life, limb, or liberty). The power to regulate originally meant only the power to restrict some modalities of something, not all modalities, and it only authorized the civil penalties of deprivation of property or privileges.
The third shortcoming of his dissent is not to make it more clear that the delegation of a power is only authorization to make a certain kind of effort, not to do whatever it might take to obtain an outcome. The Necessary and Proper Clause only makes sense, "for carrying into Execution", if understood in this way. The express delegation of a power may only define a subject matter, but it should always be understood that the delegation is not plenary within the meaning of the subject matter, but is further restricted to constitutionally legitimate public purposes, which if exceeded are abuses of discretion. The Constitution is not written to enable the achievement of any or all of the purposes for which delegated powers might be exercised. If the effort authorized by the delegation is not sufficient to accomplish the purpose, it may be because the outcome is beyond the competence of government, or it may mean the Constitution needs to be amended to delegate additional powers, but it is not a legitimate remedy to expand powers to whatever extent the accomplishment of a desired outcome may require. That would be a formula for extending powers without limit in every subject area, because there are always outcomes that no delegation or exercise of governmental powers can achieve.
See my article "Original Understanding of the Commerce Clause" at http://www.constitution.org/col/02729_fed-usurp.htm.
Today 55% of the voters of France showed they had enough sense to reject a European "constitution" that must stand as the most incompetent effort to draft a national or federal constitution in history. At http://www.constitution.org/cons/natlcons.htm we have copies or links to every national constitution we have been able to find, both past and current. None of them, including the Constitution for the United States, is perfect, and some are pathetic or corrupt, but none of them are as badly drafted as the proposed "constitution" of Europe.
The art of constitution writing is a highly advanced art. It is not just another kind of legislation. Every word is critical, and a single defect in wording or punctuation can make the difference between success and failure of the government and its society. There are probably not more than a dozen persons on Earth who have the advanced skills to do it right. Compared to constitutional design, fields like computer circuit design, or the design of space missions, are trivial. The men who designed the U.S. Constitution were geniuses who spent decades of intense study and the years between 1776 and 1787 experimenting with the design of their state constitutions. During the ratification debates of 1787-89 nearly the entire population of the American states became experts in constitutional design in a way that no other population has done before or since, hammering out a common understanding and agreement on the meanings of the words in the proposed Constitution drafted by the Philadelphia Convention. Even so, they left many ambiguities that led to civil war and ongoing controversies that continue to this day.
I usually refrain from criticizing the ways the constitutions of other nations are written, because the peoples of those nations seldom understand the criticisms and are just offended by the criticisms in a way that prevents them from thinking about what I am saying. I have avoided much criticism of the proposed European "constitution" because I wanted to let the Europeans discover its shortcomings for themselves. Unfortunately, a few of the proposed member nations have ratified it, allowing their hopes to triumph over their intellects.
The problem with the draft is that it is the result of political negotiations and compromises that became expressed in what is not a law but a political document, worded like a political platform or party manifesto, full of vague aspirations, suggestions, and abstractions that are the kinds of things overschooled European intellectual imbeciles would come up with.
The English version of the proposed European "constitution" is at http://europa.eu.int/constitution/en/lstoc1_en.htm and its deficiencies should be readily apparent to anyone familiar with the U.S. Constitution or its state constitutions, but I will just point out a few examples of them:
The term competences. What does that mean? It is used throughout the document, and seems to suggest authority to do something, rather than ability to do something with a likelihood of success. It is associated not with specifics like legislative bodies, officials, or courts, but with the "Union" generally. It does not delegate powers, or mandate their use as duties, or forbid the exercise of specific powers as rights, or specify procedures for taking actions or making decisions, including interpreting the provisions of the "constitution" itself. What does it mean that "the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas".
The term right. Instead of using it correctly to refer to restrictions on the powers of government officials, it is used loosely as "principles" that are nowhere defined, or suggestive of some vague "rights" to receive a sufficiency of a scarce resource, which has no place in a constitution of government. Socialistic drivel.
The various principles. What in the world is the "principle of conferral", the "principle of subsidiarity", the "principle of proportionality", the "principle of sincere cooperation", or any of the other "principles" it refers to? Sounds like a formula for the exercise of unlimited powers.
What does it mean that "The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions." What does "jointly" mean, and what does "functions" mean?
What does it mean that "Representation of citizens shall be degressively proportional"? How does anyone get from that to an exact number of representatives for each well-defined group of citizens, and who decides? Sounds like empowerment of some legislative body to exercise plenary powers to effectively rewrite the constitution from one day to the next.
What does it mean that "Citizens of the Union shall enjoy ... the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections ..."? Even children, or the mentally incompetent, or convicted criminals?
I could go on, but the reader can find more of the same kind of deficiency. The problem is that more voters in the European countries haven't pointed out these shortcomings in their public debates.
A properly designed written constitution of government must specify structures, procedures, rights, powers, and duties with sufficient unambiguity and precision that most ordinary people can understand all its provisions and consent to all the processes by which disputes over their interpretation are decided. Ultimately, all law rests on common understanding and consent by the people in general. It must provide for every process contingency and not mandate anything that is beyond the competence of government, such as providing people with a sufficiency of some scarce resource. "Creative ambiguity" might work for some treaties if all parties are cooperative, but it does not work for constitutions or other kinds of laws. It must never presume consensus on anything but the text of the written constitution, and allow for worst-case scenarios: wars, depressions, natural disasters, subversion, corruption, incompetence, and popular ignorance and passion. The American Constitution arose out of recent experience with war and depression. Hopefully, Europe won't have to go through another war to learn to get this kind of thing right.
The proponents of an European constitution need to go back to the drafting process with the help of competent constitutional designers, without the involvement of politicians or diplomats.
The first was a gathering of self-identified “conservatives” entitled “Judicial Tyranny”, held in Washington, DC, April 7-8, details of which can be found at http://www.stopactivistjudges.org, sponsored by a group called the “Judeo-Christian Council for Constitutional Restoration”. In the discussion that follows, I will refer to this conference with the abbreviation JT.
The second was a gathering of self-identified “progressives” entitled “The Constitution in 2020”, held at the Yale University Law School in New Haven, CT, April 9-10, details of which can be found at http://islandia.law.yale.edu/acs/conference/index.asp, sponsored by a group, mainly composed of liberal-statist lawyers and law students called the American Constitution Society, http://www.americanconstitutionsociety.org/, which was formed to oppose the influence of the conservative-libertarian Federalist Society http://www.fed-soc.org. In the discussion that follows, I will refer to this conference with the abbreviation C2020.
The JT was only attended by about 100 persons, although they included a number of past and present public officials, such as U.S. Reps. Lamar Smith, Steve Chabot, and Todd Akin, or staff members representing Sens. Tom Coburn and Orrin Hatch. Former ambassador Alan Keyes spoke, as did former Alabama Chief Justice Roy Moore, and leaders of many of the conservative activist and evangelical Christian and Jewish groups. The first day of the JT was covered by C-SPAN, and the entire conference was videotaped, with DVDs of the proceedings available for purchase.
The C2020 was attended by a larger number, perhaps 600, mainly students from most of the universities that have ACS chapters. It appeared most were law students, and most of the students of the Yale Law School seemed to be there. The speakers and session leaders were mostly law professors or prominent lawyers. The only officials seemed to be some former judges. There did not appear to be any video cameras other than my own, and after I taped part of a general session a young lady on the conference staff directed me not to tape any of the breakout sessions, on the ground that it might inhibit candid participation. I took that to mean that the session moderators didn't want a record of what they would be saying to the student participants.
A sense of the C2020 can be obtained by visiting http://keywiki.org/Constitution_2020 and http://constitutionin2020.blogspot.com.
Neither conference presented any new papers or original contributions with which the attendees were not probably already familiar, other than a few handouts by the moderators in the breakout sessions.
Although the JT had a previously prepared "Declaration of Constitutional Restoration" with “action items” they wanted the conference attendees to approve and sign, the session was open to debate on the language of the Declaration. Several changes were made. Most of it was merely aspirational. I argued for deletion of two items that were unsound, the first of which is unconstitutional, and for the addition of a new item that would have advanced the cause, but the attendees were not prepared to understand my arguments and rejected my motions. However, in later conversation several said they agreed with me after further thought, and some decided not to sign the "Declaration of Constitutional Restoration" because of my arguments.
The C2020 did not discuss action proposals. There were general sessions at which a panel of 3-4 would take turns making their arguments for what was essentially a socialist agenda, although there were some mentions made of “reforms” that in practice would make it easier to elect liberal Democrats. At the end of each such session they took questions and statements from the audience, and I offered several myself, intended to introduce some new ideas to them. More about that later. There were also “breakout” sessions in which groups of 20-60 attendees were led by usually two moderators who made sure to frame the discussion to suit their agendas and make sure no new ideas not consistent with those agendas could be introduced. Every effort was made to encourage the attendees to recite a litany of socialist dogma, resistant to any challenges or innovation.
It is interesting that at both conferences many conference leaders claimed to be “constitutionalists”, and at least one of those at the C2020 actually claimed to be “strict constructionists”. People at both conferences complained of “activist” judges, but it was clear that the label applied to judges who made decisions they disagreed with, often without really understanding the constitutional issues. Both conferences were dominated by policy preferences, and in the case of JT, two action items, that are clearly inconsistent with the written Constitution as originally understood. The JT were more motivated to effect change, and the C2020 were more academically advanced, but from my standpoint they both have a long way to go to achieve what I would consider accurate and adequate understanding of the Constitution, of what is wrong in this country that relates to the Constitution, and how to make changes that might actually improve things from their own viewpoints. They also represent a cultural divide that won't talk to or listen to one another, or frame the issues in anything other than a conservative-liberal bipolarity, a term I choose deliberately to suggest it is a form of pathology that threatens this society.
Now in fairness to the people at both conferences, they are basically good people trying to do what they think is right. The people at the JT, however, were much more willing than the people at the C2020 to learn and consider new ideas, even though less intellectually prepared to do so. The people at the C2020, were, by contrast, amazingly closed minded, unwilling to consider anything that did not fit their ideological doctrines, even material of a purely mathematical character. They are two herds, composed of members unwilling to wander from the herd, although the JT people might eventually move in a new direction with enough guidance and thought. I suspect only hard experience will bring around the people at the C2020, and they aren't likely to get that in the academic world or even in conventional legal practice. At both conferences I said things and took positions that were fairly simple, straightforward, accessible, and not inconsistent with their ultimate goals, but which left the attendees stunned by incomprehension, unable to intelligently respond, even to ask questions. It is clear that if this country is ever to attain constitutional compliance, there is a lot of work ahead and not much time to get it done.
If we are to try to identify a single intellectual deficit of both groups of people it is what might be called linear thinking. Most members of both groups have a vague familiarity with the notion of unintended consequences, but it seems unlikely that many, or even any, of them know what a feedback loop is, outside of something that is a problem with sound systems, or how complex systems of many interacting feedback loops respond to interventions in nonintuitive and not easily predictable ways. They persist in seeking solutions to problems that are simple, direct, obvious, and wrong. The interesting thing is that they are not that far apart in their views of the ultimate state of society that is desirable. Where they differ is in their perception of the alternatives actually available and how those chosen would play out. I have noted before that it seems like the few people who grasp constitutional issues readily and competently are mostly comprised of persons with backgrounds in computer science and complex systems engineering. The “informal reasoning” taught to lawyers and most other people today does not prepare them to make policy or constitutional choices. Unfortunately, that too often means such decisions are either made badly, or are made by specialists paid to obtain an outcome favorable to some special interest against the best interests of society in the long term.
Society and constitutional issues were simpler in the Founding Era, and it took highly motivated men of genius and a society of constitutional scholars to make constitutional choices that were barely adequate to the problems they faced then. Today the few who might make competent choices of that kind, to deal with the current complex situation, are marginalized and largely disregarded, and most today in decisionmaking positions come nowhere close to being able to attain even the level of understanding that the Founders struggled to achieve. People today have the tools to enable them to pretend to be wise, and to delude themselves into thinking themselves less inadequate than they are, but as long as they continue this self-delusion, they will never make the enormous effort that adequate understanding requires.
The final approved form of the Declaration of Constitutional Restoration issued from the JT can be found at their website. Most of it is aspirational and unobjectionable, but it contains two items that are objectionable from a constitutional standpoint, and one from a policy standpoint:
2) Congress should withdraw jurisdiction from all federal courts to hear any challenge to the Defense of Marriage Act, state marriage acts, or state constitutional provisions, which are claimed to be a violation of the U.S. Constitution.
3) Congress should withdraw jurisdiction from all federal courts to hear all challenges to the acknowledgment of God as a violation of the First Amendment Establishment clause, rightfully returning these matters to the several states.
5) When and where appropriate, Congress should reduce or eliminate the funding of federal courts, the salaries of judges excepted, that overstep their constitutional authority.
I made motions to delete (2) and (5), even though I also object to (3) on the same grounds as (2), but for the purposes of that effort it was sufficient to make my arguments once.
In my argument in support of my motion to delete (2), I admitted that there is a U.S. Supreme Court precedent, which I did not name, Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868), the opinion on which is at http://www.constitution.org/ussc/074-506.htm), that seems to support such congressional removal of jurisdiction from all courts, but that it was clearly decided wrongly. As I argue in my commentary at http://www.constitution.org/ussc/074-506jr.htm the purpose of having a judicial branch is to decide questions arising under the Constitution and laws authorized by it, that if Congress could constitutionally remove jurisdiction from all federal courts on one subject, they could do so on all subjects, and they could effectively destroy the judicial branch and subvert the Constitution by adding a provision to every bill that “federal courts shall not have jurisdiction to decide on the constitutionality of this act”, then proceed to enact something like “voters may vote only for the candidates approved by the Select Committee”.
In defending the provision, a member of the drafting committee, a lawyer, cited the McCardle decision, and while he seemed to recognize the logic of my argument, argued that it was not unconstitutional to do this on these particular subjects. Of course, this doesn't work, especially when as in (2) it is applied to an Act of Congress. Although it has not been often invoked, the McCardle decision is one of the more pernicious, subversive, and potentially dangerous USSC decisions ever made. If people are going to complain of judicial tyranny, they should not make proposals that rely on instances of it.
In my argument on a motion to delete (5) I said that one of the main reasons for judicial tyranny is overcrowded dockets due to inadequate funding, which, as long as the judges are paid, doesn't hurt the judges, but only the litigants, and results in too many decisions made hastily, without due consideration of the arguments, often on the basis of personal relations with the lawyers. Reducing funding of the courts would not put pressure on judges to make better decisions, but worse ones, and removing all funding would not just inconvenience the judges, but would have the effect of removing their dockets, so that they could play golf while receiving their salaries, perhaps sign a few ex parte orders for their buddies, while litigants would be screaming for justice and perhaps resorting to violence and civil disorder when they didn't get it. This proposal is another example of one that is simple, direct, obvious, and wrong, that would produce results exactly the opposite of what is intended.
Now part of what is going on here is an effort of some conservatives to increase the power of Congress at the expense of the Judiciary, because they perceive that they now control Congress, and that the liberals control the Judiciary. Interestingly, at the C2020 a panelist made the statement exactly to that effect, that progressives control the Judiciary and need to gain more control over it, largely, it seems, by indoctrinating the next generation of lawyers and judges. A number of others, especially leaders of the conference, made statements about finding ways to make sure only progressives "ascended", to the bench, to clerkships, to academic roles, or to other positions of influence. They spoke in a way that indicated they were part of a concerted effort to accomplish that.
The reality, of course, is that both sides are wrong, from a competent constitutional standpoint. More than 98% of the instances of judicial tyranny consist of sustaining unconstitutional acts of Congress and the Executive Branch, so it is not a solution to reduce the restraint of the Judiciary on those usurptive branches. In the rare cases in which federal courts have overturned acts of the other branches, they have almost always gotten it right. The single most important thing the federal courts need to do to reduce judicial tyranny is to hold more acts of Congress and the Executive Branch unconstitutional. As sympathetic as I may be to the concerns of the people at the JT, I am concerned that they are unwittingly playing into the hands of a faction for whom “constitutional restoration” is only a cover for an unconstitutional agenda of their own.
After my motions to delete items (2) and (5) were rejected, with not a single vote in favor other than my own, I proposed adding an item that might ultimately operate to restore constitutional compliance:
Congress should amend the Rules of Judicial Procedure to require that in all cases in which the government is a party, all issues of law shall be argued in the presence of the jury, that the jury shall receive copies of all pleadings, and that the jury shall have the use of an adequate law library.
In support of my motion I explained that in the late colonial and early Republic period it was standard due process to argue all issues of law in the presence of the jury, because even though they were not asked to decide motions, in rendering a general verdict, such as guilty or not guilty, they were necessarily ratifying the decisions on motions by the bench, and could not properly bring such a verdict without hearing the evidence of the argument on the motions and the ways the decisions of the bench were made.
I made the same argument in a question I put to a panel at the C2020 that included the lawyer David Boies, asking them to join me in supporting the proposal. More on that below.
After I made my argument at the JT, long-time conservative activist Howard Phillips rose to support my proposal in the future, but said it thought it was premature at this time. The lawyer on the drafting committee was asked what he thought and said he would need a few months to study the matter. When the vote came, I did get some timid votes, indicated by the ayes being spoken softly, but the nays were louder and more numerous. I wonder whether, if there had been several votes, more of the attendees, realizing there was some support, might not have joined in supporting it, sensing the movement of the herd.
The somewhat limited proposals of the Declaration of Constitutional Restoration should be compared with the more comprehensive, detailed, and effective proposals contained in several documents on my website:
1. Constitutionalist Platform http://www.constitution.org/pol/us/consplat.htm
2. Declaration of Constitutional Principles http://www.constitution.org/consprin.htm
3. Statement of Grievances and Demands for Redress http://www.constitution.org/grievred.htm
4. Legal Reform Act http://www.constitution.org/pol/us/leg_ref_act.htm
I provided printouts of these documents to the lawyer on the drafting committee for their consideration in drafting future proposals. We will see what becomes of that.
In contrast, there was no opportunity to hand out papers at the C2020. Only the moderators of the breakout sessions seemed to have been allowed to do that. The conference leaders seemed to be trying to maintain tight control over what was said and read. The most I was able to do, other than during the general session questions, was to mention www.constitution.org and pass out my business cards.
I made three question-comments in the general sessions. The first was to a panel composed of Guido Calabresi, Judge in the U.S. Court of Appeals 2nd Circuit, and Patricia Wald, former Chief Judge in the U.S. Court of Appeals DC Circuit, and moderated by Paul Gewirtz:
If we are to take seriously the authority of the written Constitution as the “Supreme Law of the Land” then we need to re-examine the way we have come to use stare decisis, and recognize that in treating judicial precedents like constitutional enactments, untethered to the written Constitution as originally understood, we are making judicial decisions that are in fundamental conflict with the written Constitution.
Judge Calabresi made an intelligent response to my comment, explaining to the audience that each decision based on a previous decision can drift away from the written Constitution, and that it may become necessary to “ratchet it back” by reversing some of those precedents. Judge Wald did not respond directly to the point, but identified herself as a “strict constructionist” on some issues. It would be interesting to explore further what she meant by that.
My second question-comments was made to a panel consisting of law professors Yochai Benkler, Pamela Karlan, Burt Neuborne, and Nate Persily, moderated by Robert Post. Their discussion had been on partisan gerrymandering, so I said:
I filed an amicus curiae brief in Session v. Perry, the Texas Redistricting case. I found there were two groups of litigants, one arguing for setting aside the 2003 map gerrymandered in favor of the Republicans, and returning to the map of 2001, gerrymandered in favor of the Democrats, and the other favoring the 2003 map. In my amicus brief I argued that the arguments for setting aside the 2003 map are valid, but also apply to the 2001 map, and no one was representing the Constitution or the people with a nonpartisan solution. In my brief I proposed using computer software developed by the staff of the Texas Legislative Council that works very well to randomly draw maps that are equal in population, compact, contiguous, aligned to political boundaries, and simply-connected, and have it draw many such maps, selecting one at random, leaving the legislature with only the task of legislating the specifications for the program to draw the maps, without human intervention in the actual drawing. This nonpartisan solution did not come from a Republican or a Democrat, but from a Libertarian.
There was no response to my comment, indicating to me that the panelists had no interest in nonpartisan solutions, only in advancing their own partisan agenda any way they could.
My third question-comment was made to a panel composed of lawyers David Boies, John Podesta, Theodore Shaw, and Kathleen Sullivan, moderated by Walter Dellinger:
The standard of due process during the late colonial and early Republic period was to argue all issues of law in the presence of the jury. This is shown by transcripts of some of the trials during this period, some of which can be found online at www.constitution.org. This is not the practice today. It was recognized then that although juries were not asked to decide motions, in bringing a general verdict of guilty or not guilty they were necessarily ratifying the decisions of the bench on motions, and they could not bring a verdict intelligently if they could not hear the legal argument and decide whether the bench had decided correctly. Are you prepared to join me in trying to remedy this departure from due process and get all legal issues argued before the jury?
They didn't respond, other than that David Boies had a surprised and perhaps alarmed expression on his face, and the moderator, Dellinger, said the proposal was “interesting”.
The first breakout session I attended was moderated by Bruce Ackerman and Jacob Hacker, but Ackerman took control of recognizing people to speak. He recognized me once, and I said, in response to confusion about how economic inequality occurs and persists:
These problems are well understood, but the understanding is not spreading rapidly. For example, if you go to www.constitution.org, click on Basic Principles, and scroll to the bottom, you will find links to papers on aggregating networks. This research explains how the rich get richer, why equal distributions of wealth are unstable, why monopolies occur, and why a single species will displace all others in an ecological niche.
Ackerman asked me to summarize the research, which I did. But thereafter he pointedly refused to recognize me for further participation, turning to each of the others several times. It was clear that he didn't want the introduction of new ideas.
One thing that was interesting was Ackerman's pushing of his proposal that the rich be taxed enough to pay everyone, including the rich, $80,000 a year, without them having to do anything to earn it. He admitted at one point this might cause problems like capital flight (no kidding!), and he seemed oblivious to the problem of who is going to produce anything to tax if no one has to work. Perhaps Americans are to own the production of the rest of the world and pay themselves dividends for exploiting foreign labor. Hmm. Doesn't sound very progressive to me. No wonder they didn't want the breakout sessions taped.
After the session, I shook his hand and said, “Thank you for systematically ignoring the one person here who actually has solutions.” He grinned and said, “You have solutions?” Of course, progressives don't want solutions. They want the problems to persist that justify their activities. Like government workers everywhere, actually solving problems would put them out of their jobs.
That session with Ackerman ended early, so I had time to slip into another breakout session just before it ended, and I said:
All these discussions are ignoring the problems of legal and judicial misconduct and abuse. I cite as typical the case of a former lawyer who represented clients in seven civil rights cases against the Police Department of Lago Vista, Texas, one of which, Atwater v. Lago Vista, went to the Supreme Court, but without the original attorney, because the police chief went to a federal judge, who got the FBI to investigate the attorney, and miraculously “discover” that two sevens had been turned into nines in his social security number, which they used as the basis for a federal criminal charge, punishable by 5-30 years, which they used to pressure him into giving up his bar card, and thus drop the cases. Law professors teach law without criticizing judicial misconduct, because they are lawyers who can be disbarred for doing so.
The room responded with stunned silence. No one had anything to say about the problem of corruption in the courts and the practice of law.
Of these two conferences, clearly the JT was on a more promising track. Like most of them I grew up in a very different America, a small town in Texas where what are sometimes called “moral values” or “family values” were triumphant. There was some economic inequality, but no one was starving, and everyone who wanted to work could get a job and live comfortably. There were social circles, but no real social inequality. Everyone, rich and poor, went to the same churches and their kids attended the same schools. The kids went to school to learn, not to disrupt, making teaching them easy. Almost no one got divorced. There were no narcotics, almost no crime, no bullies, no gangs, and the kids didn't have too much money to spend, but had to earn it themselves. Everyone was on the same track to get as much education as possible, then start a career, and then and only then get married, have sex and start a family. It was idyllic, not just from a “conservative” viewpoint, but from a “progressive” one as well. Those were words we read in American history textbooks but they didn't have much relevance to our daily lives.
The situation was different in the cities, where the breakdown of values, as seen today, began, but even there the small town values prevailed until fairly recently.
But I witnessed the breakdown, and observed it closely. I understand very well what happened and why, and what might work to undo the decline, and what won't. A lot of people do, but too many people don't want to listen to what they have to say. They prefer their own theories and their own solutions. This is not the place to expand on what I learned about this, except to point out that it has nothing whatsoever to do with whether there is prayer in the schools, or whether homosexuals call their couplings “marriage”, or any of the many other things that too many people fasten on as the silver bullets to fix the problem of declining moral values. Until such folks, however earnest they might be, learn to put aside their delusions and come to understand what is really going on, they are likely to be more a part of the problem than a part of the solution.
Fortunately, these two conferences are not all that is going on in the field of constitutional compliance. If they were we would be in a desperate state indeed.
1 The ACS should not be confused with the Constitution Society, http://www.constitution.org, which I represent. They initially took the name Madison Society, but found another organization already had that name, and that we already had the name Constitution Society. Some have suggested a better name would be Anti-Constitution Society.
2 The transcripts of such trials, supporting my thesis, can be found at http://www.constitution.org/trials/trials.htm .
3 “Evolving Complex Networks in Constitutional Republics”, by Jon Roland, http://www.constitution.org/ps/ecncr.htm .
Imagine for a moment you are the President of the United States. You are preparing to announce a new government program when an aide rushes in and tells you that Minneapolis has just been destroyed by a nuclear explosion. Hundreds of thousands dead or soon to die. Medical facilities overwhelmed. You know you will be expected to answer this attack, but how? You ask who did it, but no one knows, and no one is claiming responsibility. After several days of intelligence analysis, the best the intelligence agencies can do is report that it was probably a suitcase nuke and narrow it down to a short list of suspected terrorist groups and nations from which they may have operated, which includes some modern Western nations that are lax in their security measures.
While you are agonizing over what to do, Denver is destroyed. The armed forces are mobilized, but still no idea where to send them, or what they are to do when they get to wherever they are sent. You declare martial law in several cities where rioting is breaking out and people begin to flee the cities and loot stores and supermarkets for supplies. You discuss an all-out nuclear attack on the short list of suspect nations, but two of them have nuclear weapons already, and threaten to use them. Furthermore, Russia and China warn against such a response, hinting that they will launch a retaliatory attack on the U.S. if we attack any nation not proved to be responsible for the attacks on the U.S.
There follows a pattern of random cities being destroyed all across the U.S. at approximately one-week intervals. San Antonio, TX. New Haven, CT. Redmond, WA. Atlanta, GA. It goes on, and on, and on. You order general martial law, and seal the borders, pending inspection of all cargo entering the U.S., which proves to be impossible. In the meantime, people are fleeing the cities, rioting, forming armed groups to defend themselves against rioters, and detaining anyone who looks suspicious, including anyone of apparent Middle-Eastern extraction.
At this point I will leave it to the reader to think about what he would do as President, and ask readers to think about what this kind of all-too-real nightmare scenario might mean for our constitutional order. Preserving "New Deal values" would seem a luxury in the face of the threats of nuclear terrorism.
For discussion of these and other topics, I invite readers to our Constitution Society site and to our Constitution Blog. If I were to address the conference, it would be to examine these and other issues, and ask whether, even if such a nightmare can be avoided, "progressives" do not face a choice: between civil liberties and government programs (jobs). Much "progressive" thought presumes that government agents are for the most part benign, and abuses rare, but many of us note a disturbing trend toward abuses of constitutional rights as prevailing practice or even policy in more and more branches and departments of government. What "progressives" call "fundamentalists" would argue that such abuses are the inevitable consequence of progressive programs that are all too willing to expand government powers beyond what is delegated by the Constitution, abandoning the wisdom of the Founders that the only way to secure rights was to restrain government powers, not enhance them.
TITLE 18 > PART I > CHAPTER 47 > § 1001
§ 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both.
TITLE 18 > PART I > CHAPTER 73 > § 1510
§ 1510. Obstruction of criminal investigations
Release date: 2004-08-06
(a) Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both.
(c) As used in this section, the term "criminal investigator" means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States.
TITLE 18 > PART I > CHAPTER 73 > § 1512
§ 1512. Tampering with a witness, victim, or an informant
Release date: 2004-08-06
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to -
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation  supervised release,, parole, or release pending judicial proceedings;
shall be fined under this title or imprisoned not more than ten years, or both.
(h) There is extraterritorial Federal jurisdiction over an offense under this section.
TITLE 18 > PART I > CHAPTER 73 > § 1515
§ 1515. Definitions for certain provisions; general provision
Release date: 2004-08-06
(a) As used in sections 1512 and 1513 of this title and in this section -
(1) the term "official proceeding" means -
(C) a proceeding before a Federal Government agency which is authorized by law; or
(3) the term "misleading conduct" means -
(A) knowingly making a false statement;
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with intent to mislead;
(4) the term "law enforcement officer" means an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant -
(A) authorized under law to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or
(b) As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.
There is reason to suspect several such prosecutions have been done using false evidence or testimony. In the Martha Stewart case, there were no audio or video recordings made or disclosed. It was the word of the investigators against hers.
Their procedure following an encounter is to fill out a Form 302 report of what the subject said, signed by two agents. But they do not make a recording, so the evidence against the subject is whatever the two agents say it is, and they can lie. Whatever they write will generally be accepted without question. Even refusing to say anything at all will not protect one against lying agents.
It is the usual practice of investigators not to make an audio or video record such interviews, but to have two or more agents do it, and then file a report, Form 302 for FBI agents, then join in testifying in support of that report, even if it is itself not truthful. Without a recording, you can't subpoena it as evidence.
It should be noted that the technology now exists to speak into a microphone with one voice and have a computer transform the voice into that of another, in real time, with such fidelity that the falsification is not readily detectable even by expert analysis. Such transforming of video records is more difficult, and not yet possible in real time, but given enough time, a video can be produced that can have anyone saying or doing anything.
We cannot trust government agents not to use such methods to produce false evidence.
We must therefore issue this warning:
NEVER talk to federal agents on any matter whatsoever. Don't even give them the time of day, or your name or other information, unless they waive in writing, certified by a court of competent jurisdiction, all rights to prosecute for making false statements or obstructing an investigation, you are accompanied by legal counsel, have at least two independent witnesses you can trust, and the entire session is video recorded and multiple copies of the records widely distributed to the custody of trusted persons.
But to avoid being prosecuted for obstruction of justice for refusing to talk to them, you need to say something like, "I will only talk to you with advice of, and in the presence of, legal counsel. Give me your card and my attorney will contact you."
For more on why this code is unconstitutional see Original Understanding of the Commerce Clause
Since this article was originally posted with the title "Talk to Federal Investigator, Go to Jail", I learned of cases in which people are being prosecuted for "lying" to state or local "investigators", on the alleged theory that such nonfederal agents or contractors share their information with federal agencies, and thus are acting as agents for the federal government. The same reasoning could extend to foreign government agents or contractors. The standards for evidence of what people might say to such nonfederal investigators are generally even weaker than for federal, often no more than the word of one agent against one civilian with no witnesses and no recording. Therefore, I have changed the title to replace the word "Federal" with "Government". Since there is no definition of what an "investigator" is, or even if such person has to be a government employee, the advice to people needs to be, "Don't talk to anyone about anything." At least not without video recording the encounter and with at least one neutral witness who can't be compromised.
You might memorize the following statement:
"I note that you appear to be a government investigator. I hereby invoke my rights under the Fifth Amendment to the United States Constitution. Furthermore, while 18 USC 1001 remains in effect, and on advice of counsel, I will not speak to any government investigators without a lawyer and two independent witnesses, and a video recording of the encounter under my control and to which I or my attorneys shall have exclusive possession."Also, never allow them into your residence or vehicle without a warrant, because if let in, they can claim they saw something that would support a warrant, and plant incriminating evidence.
The government needs to make up its mind. It can either get the cooperation of citizens, or it can prosecute them for what they (may or may not) say.
We are entering the era in which only militia can get the cooperation from civilians needed to enforce the law. That suggests government agents need to abandon law enforcement and leave it to militia.
TITLE 42 > CHAPTER 7 > SUBCHAPTER II > § 408
§ 408. Penalties
Release date: 2003-07-24
(a) In general Whoever —
(7) for the purpose of causing an increase in any payment authorized under this subchapter (or any other program financed in whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter (or any such other program) to be made when no payment is authorized thereunder, or for the purpose of obtaining (for himself or any other person) any payment or any other benefit to which he (or such other person) is not entitled, or for the purpose of obtaining anything of value from any person, or for any other purpose.
(B) with intent to deceive, falsely represents a number to be the social security account number assigned by the Commissioner of Social Security to him or to another person, when in fact such number is not the social security account number assigned by the Commissioner of Social Security to him or to such other person; or
shall be guilty of a felony and upon conviction thereof shall be fined under title 18 or imprisoned for not more than five years, or both.
Note that this is not confined to providing a social security number to a federal agent or agency, or on a federal form or document. It also applies to private transactions, such as opening a bank account, applying for a loan, leasing an apartment, or applying for a job. It is not limited to the individual whose social security number is entered. Anyone involved in the recordation of the SSN may also be prosecuted.
There is reason to suspect several such prosecutions have been done by altering the records of use of social security numbers, or some anonymous off-shore data entry clerk mistyping the number into a computer, to make it appear a false number was used. Since this can easily be done by anyone with access to the records, we must issue this warning:
NEVER give or disclose a social security number to anyone for any purpose whatsoever, unless they can and will effectively guarantee, in writing, secured by a large bond, that any records of the use of the number will be kept secure from all persons who might have the capability to physically alter them to change the number, for the remainder of your life. Furthermore, you must be able to make and keep your own copy of any such records in a secure location, backed by a video tape of the complete transaction, with all records verified by a notary, and affidavits of at least two independent witnesses to the complete transaction and the social security number you provide.
In principle it might be safe to provide a social security number just long enough to verify the records of the correspondent, if no record is made of the number provided, but this should only be done if one can be sure no record is made.
One might think, wrongly, that it would be a defense against criminal conviction that there is no evidence the defendant personally provided the incorrect number. However, apparently courts are holding that if the number is found to be incorrect, regardless of who made the error, the defendant is presumed to have done it. Now, one might think at least a jury would refuse to convict without such evidence, but since it is a matter of interpreting a record, the judge may, and likely will, find that there is no issue of fact and deny the defendant a jury trial.
This is not a small matter. Convicting innocent persons on false evidence is suspected in several cases. Anyone having information about any such prosecutions is asked to contact the author of this article.
For more on why this code is unconstitutional see http://www.constitution.org/col/02729_fed-usurp.htm
In his op-ed on the First Amendment,1 Rich Oppel commits two errors, the first fundamental, the second seemingly minor, but both revealing of the difficulty in educating Americans on the principles of constitutional republican government.
First, the seemingly minor error. He asked, “Can the government censor the Internet?”. An English teacher would remind him that the correct word is “may”, not “can”. The question is not about physical ability but legitimate authority. Of course, government may not censor the Internet. However, we can also ask whether it can, and the answer is also no. Several repressive governments have tried and failed. The Internet was designed to survive nuclear war. It routes around censorship like any other errors.
Second, the fundamental error is found in his statement that “First Amendment rights ... could be withdrawn or curtailed by amendment of the Constitution.” The error lies in regarding rights as deriving from the Constitution as the source. The rights recognized in the First Amendment precede and are superior to the written Constitution of government. While it would be possible to adopt an amendment that would seem to curtail those rights, such an amendment would itself be unconstitutional, and the rights would continue even if their exercise were threatened by official repression.
There are actually three constitutions. The third is the written Constitution of government, framed in 1787, ratified in 1789, and subsequently amended.
The second is the unwritten constitution of the society, arising from the social contract that created the society, obliging its members to mutual defense of one anothers' rights, and involving decision by deliberative assemblies or conventions called by due public notice and conducted by established rules of procedure. It was such conventions that established the written Constitutions of governments, both federal and state.
The first is the constitution of nature, the elements of which are the laws of nature, the nature of human beings and their situation in the universe, and the constraints those things put on what is rational for humans to do. Ancient political philosophers wrote of “natural law”, and theologians identified it with “God's law”, but whether one discusses the principles in natural or theological terms is a matter of personal preference.
A well-framed constitution of government must conform to the superior constraints of first, the constitution of nature, and second, the constitution of the society. Provisions or amendments not derived from or in conflict with them are unconstitutional, just as are statutes not derived from or in conflict with the written constitution of government. “Unconstitutional” means lacking in legitimate authority, even if enforced by physical compulsion.
Each of these constitutions are the sources of their own rights. From the constitution of nature we get the rights of life, limb, and liberty, and the means to secure them, such as arms. From the constitution of the society we get the right to title to property and the rights of due process. From the constitution of government we get the rights of denizenship, including the rights to remain on and return to the location of our birth, and citizenship, including the rights of voting and holding office.
Due process does allow for the exercise of a right to be “disabled”, or restricted, either to resolve conflicts in the exercise of rights that infringe on one another, to protect innocent individuals from harm, or as punishment for an offense. It also allows such exercise to be waived temporarily in a particular proceeding. But disablement or waiver is not removal of rights, the exercise of which can be fully restored by the removal of the disablement or waiver.
Therefore, any amendment to withdraw or curtail the rights of assembly, petition, speech, press, or religion would be as unconstitutional as would an amendment to require objects to defy the law of gravity or make two plus two equal five. Only changing humans into a very different kind of being would allow that.
We need to convey a deep understanding of “legitimacy” or “legitimate authority”, and how it can descend or not by a logical chain of derivation from superior laws like the Constitution to lower level acts of officials. We need teach that law is not just whatever official like judges do, or can be expected to do, or can get away with doing, but what they are authorized to do, and that legitimacy does not stem just from the results of the last election, but from the original historic act of ratification of the written Constitution of government, amendments thereto, and the admissions of each state.
Jon Roland is founder and president of the Constitution Society with a website at http://www.constitution.org
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